Nashville, C. & St. L. Ry. v. Crawford

• Decision Date: 29 June 1954
• Citation: 281 S.W.2d 69,39 Tenn.App. 37
• Parties: NASHVILLE, CHATTANOOGA AND ST. LOUIS RAILWAY, Plaintiff in Error, v. William Sidney CRAWFORD, Defendant in Error.
• Court: Tennessee Court of Appeals

Page 69

281 S.W.2d 69

39 Tenn.App. 37

NASHVILLE, CHATTANOOGA AND ST. LOUIS RAILWAY, Plaintiff in Error, v.William Sidney CRAWFORD, Defendant in Error.

Court of Appeals of Tennessee, Western Section.

June 29, 1954 Certiorari Denied by Supreme Court Dec. 17, 1954.

William F. Murrah, Memphis, for plaintiff in error.

Walker Percy, Memphis, for defendant in error.

BEJACH, Judge.

The sole question presented by the appeal in this case, is whether the trial court should have directed a verdict in favor of the defendant, Nashville, Chattanooga and St. Louis Railway, either at the close of the Plaintiff's proof or at the close of all of the proof, the motion having been renewed at that time; or stated differently, whether there is any evidence in the record to support a verdict in favor of the Defendant in Error, the Plaintiff in the Court below.For convenience the parties will be styled as in the lower Court, Plaintiff and Defendant.

This suit was brought by the Plaintiff, a resident of Laconia, Fayette County, Tennessee, in the Circuit Court of Shelby County, against the Defendant, Nashville, Chattanooga and St. Louis Railway, and the Virginia-Carolina Chemical Corp., which has a place of business in Memphis.It was alleged that the Plaintiff suffered personal injuries as a result of a side door of a freight car falling on him, while the car containing fertilizer, consigned to Plaintiff's employer, was being unloaded April 5, 1952 on a side track at Laconia, Tennessee.Suit was filed April 3, 1953.

The declaration alleges that the door of the car was stuck and the rollers at the top of same were missing, where it should have been suspended from a track, but that the missing rollers or absence thereof, were concealed by an iron flange covering the track.It was charged that the Defendant, Virginia-Carolina Chemical Corp. closed the door of this car, a car belonging to the Wabash Railroad, and being car number 47,875, by inserting wooden wedges at the bottom of the door, pressing the door up and concealing the defect, and by permitting said car to be shipped in said defective condition, without warning as to its condition.It was further alleged that the Defendant, N. C. and St. L. R. R. failed to properly inspect the car, and delivered same in a defective condition at the siding at Laconia, Tennessee.

Both Defendants filed pleas of the general issue and also special pleas.Defendant, Virginia-Carolina Chemical Corp. denied having inserted the wedges under the door.At the end of the Plaintiff's proof, both Defendants made motions for peremptory instruction.That of the Defendant, Virginia-Carolina Chemical Corp. was granted and no appeal had been perfected as against it.Consequently, the case now rests solely against the Nashville, Chattanooga and St. Louis Railway Co.At the end of all of the proof, the N. C. and St. L. R. R. renewed its motion for a peremptory instruction, which was again denied, and the matter submitted to the jury.The jury returned a verdict in favor of the Plaintiff for $1,500.The Defendant, N. C. and St. L. R. R., made a motion for a new trial which assigned as error that there was no evidence to support the verdict, and that the motion for a peremptory instruction should have been granted.The motion for a new trial was overruled, and appeal was perfected to this Court.

There is little conflict as to the material facts presented by this record.The freight car, being Wabash car number 47,875, was not furnished to the consignor, Virginia-Carolina Chemical Corp. by the N. C. and St. L. R. R.The N. C. and St. L. did not have trackage into the plant of the Chemical Corp., but received the car from the L. and N. Railroad which was one of three railroads servicing the plant of the Chemical Corp.About April 1, 1952, this car was loaded with about 800 one hundred pound sacks of fertilizer, consigned to Morrison and Co. at Laconia, Tenn. Morrison and Co. was the employer of the Plaintiff.The car was inspected by the employees of the Chemical Corp. when it was loaded and no defects in the car were noticed or reported.The Chemical Corp. placed its seals on the car on the doors on both sides, and it was moved from its plant by the L. and N. R. R.The car was delivered by the L. and N. R. R. to the N. C. and St. L. during the afternoon of April 3, 1952 at its interchange track.Upon its receipt by the N. C. and St. L., it was given the usual and customary inspection by an experienced car inspector.The next morning, it was placed in a local freight train and given another inspection in the usual and customary manner.It was transported in and by this local freight train the same morning and set out on the siding of the consignee at Laconia, between 40 and 50 miles east of Memphis.The consignee was notified the same day by telephone by the N. C. and St. L. agent as Somerville, sic miles away.There was no station agent at Laconia.The Defendant heard nothing further about this car until the agent at Somerville received a telephone call from an employee of the consignee on April 8, four days later, that the car was empty and a door was off but put back in the car.Nothing was then said about anyone having been injured, nor that any trouble had been had getting the door open.Station agent at Somerville directed the local freight train headed for Memphis that day, to pick up the car and that is the last the Defendant, N. C. and St. L., has heard of this car.Several days later, the wife of the Plaintiff came to the office of the station agent in Somerville and stated that her husband had been injured.The Defendant then sent a doctor out to see the Plaintiff, but he declined to have the railroad doctor look him over.The manner in which he was injured was as follows:

When he removed the wedges from the bottom of the car door and found that the door could still not be moved, he used a crow bar and a cold chisel, but was still unsuccessful in opening the door.Thereupon, he sent for a tractor which he hitched to the lever of the car door by a chain and had the tractor undertake to apply sufficient power to move the door.A first effort to move the door with the chain failed because the chain slipped from the tractor.Thereupon, the Plaintiff, reattached the chain and undertook to hold the chain for it to get tight.He then told everybody to get out of the way, and stepped back, himself, to what he thought was a safe place.When the tractor started again, the door moved a very short distance, and then fell outwardly upon Plaintiff.

The Plaintiff and two of his witnesses testified that they had used tractors to open freight car doors on previous occasions, but they did not claim that the Railroad knew of any such practice or method of opening freight car doors.On the other hand, conductor Williams who had been running on local freight trains over this route for more than forty years, and had had vast experience in opening car doors stated that he had never heard of using a tractor for opening a car door until this instance occurred.The station agent, Corbin, who had been stationed at Somerville for more than five years, and had been with the railroad for more than twelve years, stated that he had never heard of using a tractor for opening freight car doors.Agent Corbin further testified that if he had been notified, which could have been done by telephone in a few minutes, that the door of this car was stuck and hard to open, he could have had it opened by employees of the Defendant railroad company within two or three hours after receiving the notice.

A careful examination of the record in this cause fails to disclose any evidence which, in the opinion of this Court, warranted the trial Judge in submitting any issues to the jury.The law applicable to the duty of the DefendantRailway Co. in a situation of this kind is stated in American Jurisprudence and in a decision of our own Supreme Court as follows:

'When a railroad company furnishes freight cars for loading and unloading, it is liable only for ordinary care and for such defects as might have been discovered by reasonably care in inspection.It does not have the absolute duty of furnishing a proper car.'44 Am.Juris., 'Railroads'p. 655;Illinois Central R. Co. v. Nichols, 173 Tenn. 602, 118 S.W.2d 213.

Since the railroad company was not an insurer and liable only for lack of ordinary care, the burden of proof was on the Plaintiff to show some act of omission or commission on the part of DefendantRailroad Company which constitutes negligence.The contention asserted in Appellee's brief, that the burden of proof was on the Defendant to show a proper inspection of the car, is not well taken.The law is otherwise, the burden of proof being on the Plaintiff to show an improper inspection or some other act of omission or commission which constituted negligence proximately causing the injuries sustained by Plaintiff.Even if...